UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 13-4457

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. RAYMOND COLLINS, Defendant - Appellant.

No. 13-4458

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. EDWARD WILSON, Defendant - Appellant.

Appeals from the United States District Court for the Eastern District of Virginia, at Alexandria. Claude M. Hilton, Senior District Judge. (1:12-cr-00502-CMH-1; 1:12-cr-00502-CMH-2)

Argued: March 19, 2014 Decided: July 1, 2014

Before TRAXLER, Chief Judge, and WILKINSON and KEENAN, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

ARGUED: Joan Caroline Robin, LAW OFFICE OF JONI C. ROBIN PLLC, Alexandria, Virginia; Christopher Robert Kennedy Leibig, LAW OFFICE OF CHRISTOPHER LEIBIG LLC, Alexandria, Virginia, for Appellants. Michael Phillip Ben'Ary, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: Dana J. Boente, Acting United States Attorney, Maya D. Song, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

Appellants Raymond Collins and Edward Wilson raise numerous

challenges to their convictions for conspiracy to distribute

five kilograms or more of cocaine and 280 grams or more of

crack, in violation of 21 U.S.C. §§ 841 and 846. We reject each

of these challenges and affirm the convictions for both Collins

and Wilson.

I.

From 2009 to 2012, Collins and Wilson were involved in the

sale and distribution of illegal drugs in the Houston, Texas,

area. Houston-based dealer Christopher Buckner described

Collins and Wilson as business partners in the drug trade who

were like brothers. Buckner’s supplier was Collins, who was

able to obtain and sell large amounts of cocaine—as much as two

kilograms every two days. To facilitate their distribution

operation, Collins and Wilson both had vehicles—Collins a red

pickup truck and Wilson a blue Acura SUV—equipped with hidden

compartments near the console to store drugs, money or handguns,

preventing easy detection.

In 2010, agents employed by the Drug Enforcement Agency

(“DEA”) in northern Virginia were investigating a Virginia

dealer named Stevie Thornton, who had relocated to Houston but

still sought to sell to customers in Virginia. Using an

informant, the DEA set up drug buys from Thornton in Houston and

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conducted surveillance during each of these transactions.

Collins supplied the cocaine to Thornton in two of these deals.

On April 12, 2011, Thornton agreed to sell the Virginia-based

informant four ounces of cocaine that Buckner, in turn, arranged

to buy from Collins. Buckner and Thornton arrived at the

prearranged transaction site, the Taco Cabana restaurant parking

lot, and contacted Collins via Buckner’s cell phone. Collins,

however, informed Buckner that he could not make the meeting and

was sending Wilson to deliver the cocaine. Subsequently, Wilson

arrived at the Taco Cabana in a blue Acura SUV. Buckner paid

Wilson for the cocaine and Wilson gave him the four ounces.

Cell phone records corroborate that Buckner and Collins were in

frequent contact before the deal, and that Collins and Wilson

were in frequent contact before the meeting. Law enforcement

surveillance photos were taken of Buckner and Thornton as well

as Wilson’s blue Acura SUV during the Taco Cabana meeting.

Later, Buckner discussed with Collins the fact that he overpaid

Wilson for the cocaine.

Thornton arranged to have Buckner broker another deal for

the Virginia informant, this time for a half-kilogram of cocaine

supplied by Collins. On June 8, 2011, Buckner and Thornton rode

in Thornton’s tow truck to meet Collins, who was driving his red

pick-up truck. Before the exchange took place, Buckner became

suspicious that they were being watched by law enforcement, so

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Buckner called Collins and aborted the transaction. Law

enforcement agents conducting surveillance arrested Thornton and

Buckner in Thornton’s tow truck as they were leaving.

On March 26, 2012, Collins was arrested while driving

Wilson’s Acura SUV after Houston law enforcement agents

conducting surveillance of a residence observed a blue Acura SUV

arrive. Agents followed Collins to a nearby Wal-Mart parking

lot, where they observed him engage in a transaction with the

driver of a Nissan Altima. Around 9 p.m., shortly after leaving

the Wal-Mart, Collins was stopped by Houston police officer Le.

Officer Le then told narcotics officers involved in the

surveillance that Collins had consented to a search of the Acura

SUV. With the assistance of a K-9 unit, officers found cocaine,

approximately $35,000 in cash, and a .45 caliber handgun in a

hidden compartment near the console in the Acura.

Appellants were both charged with conspiracy to distribute

five kilograms or more of cocaine and 280 grams or more of crack

(count 1), and Collins alone was charged with possession of a

firearm in furtherance of a drug trafficking crime (count 2).

Prior to trial, Collins moved to suppress the evidence from the

search of the Acura SUV. The district court, based largely on

hearsay testimony from narcotics agents at the suppression

hearing, found that Collins had consented to the search and

denied the motion.

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The jury found Appellants guilty as charged. On the

conspiracy count, the jury found that Collins and Wilson

conspired to distribute at least five kilograms of cocaine and

at least 28 grams, but less than 280 grams, of crack.

Appellants both received 240 months’ imprisonment for the drug

conspiracy offense, and Collins received an additional

consecutive 60-month term for his firearm charge.

II.

a.

Appellants first argue that the trial court abused its

discretion by refusing Appellants’ request that prospective

jurors be questioned during voir dire about their ability to

apply the burden of proof and reasonable-doubt standards.

Appellants contend this specific line of inquiry was necessary

in light of their defense at trial that while the evidence might

prove drug activity in Texas, the Appellants nevertheless did

not join the conspiracy as charged by the government. They

proposed these voir dire questions on the basis that reasonable

jurors might naturally be reluctant to return apparent drug

dealers to the streets despite no evidence supporting the

charged offense. The district court declined, stating that it

would “properly instruct the jury in those areas.” J.A. 358.

The court then asked typical voir dire questions relating to

whether any prospective juror had any prior knowledge of the

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facts of or the participants in the case, worked in or was

related to anyone working in law enforcement, or had any

experience as a victim, witness or defendant in a criminal

proceeding. The district court subsequently instructed the jury

as to the government’s burden of proving the charged crimes

beyond a reasonable doubt, and Appellants do not take issue with

this aspect of the charge.

Appellants’ argument is foreclosed by circuit precedent.

In United States v. Jeffery, 631 F.3d 669, 674 (4th Cir. 2011),

we held that a district court is not required to ask questions

in voir dire relating to the reasonable-doubt standard and

burden-of-proof issues when requested by the defendant so long

as the jury is properly instructed at the end of trial. In

Jeffery, as here, the accused submitted voir dire questions

“address[ing] the jurors’ willingness to apply the reasonable-

doubt standard and to hold the government to its burden of

proof,” but the district court declined to ask any questions

specifically addressing the reasonable-doubt standard and

instead asked “fairly standard questions, such as whether the

potential jurors knew about the facts of the case, or whether

they or their family worked in law enforcement.” Id. at 672.

No one contends that the district court failed to properly

instruct on the reasonable-doubt standard or the government’s

burden of proof; we see no cogent basis for concluding that this

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case falls outside the scope of our settled general rule that

the district court is not required to question prospective

jurors about reasonable-doubt or burden-of-proof issues during

voir dire.

b.

Second, Appellants contend that the district court abused

its discretion by denying their motion to argue the law to the

jury and that the jury, in turn, be allowed to determine the

applicable law according to its own collective conscience.

Appellants expressly acknowledge that Sparf v. United States,

156 U.S. 51 (1895), forecloses the argument that the jury may

independently determine the applicable law. “Public and private

safety alike would be in peril if the principle be established

that juries in criminal cases may, of right, disregard the law

as expounded to them by the court, and become a law unto

themselves.” Id. at 101. As we have explained, Sparf “affirmed

the right and duty of the judge to instruct on the law, and

since that case the issue has been settled.” United States v.

Moylan, 417 F.2d 1002, 1006 (4th Cir. 1969); see id. at 1007

(“Since the Sparf case, the lower federal courts-even in the

occasional cases in which they may have ventured to question its

wisdom-have adhered to the doctrine it affirmed.” (footnote

omitted)). We continued to embrace this principle in United

States v. Muse, 83 F.3d 672, 677 (4th Cir. 1996), explaining

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that “a defendant is not entitled to inform the jury that it can

acquit him on grounds other than the facts in evidence.”

Indeed, although “a jury has the power of nullification[,] . . .

defense counsel is not entitled to urge the jury to exercise

this power.” Id. Nevertheless, Appellants ask us to “revisit”

Sparf as if a Fourth Circuit panel could overturn Supreme Court

precedent. As counsel should well know, a panel of this court

does not even have the power to overturn the decisions of

previous panels of our own court, see United States v.

Guglielmi, 819 F.2d 451, 457 (4th Cir. 1987) (holding that only

the en banc court, not a subsequent panel, has the authority to

overturn a previous panel’s published decision), let alone

Supreme Court authority. Accordingly, we reject this argument.

c.

Collins challenges the district court’s denial of his

motion to suppress evidence recovered from a search of his

vehicle. In considering the denial of a motion to suppress, we

review a district court’s legal conclusions de novo and its

factual findings for clear error. See United States v. Branch,

537 F.3d 328, 337 (4th Cir. 2008). We also construe the

evidence in the light most favorable to the prevailing party,

i.e., the government. See id.

At the pretrial suppression hearing, the evidence

demonstrated the following. On March 26, 2012, Houston-area

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narcotics officer Ben Katrib, acting on information from a

confidential informant, was conducting surveillance on the

driver of a blue Acura SUV believed to possess one kilogram of

cocaine. Officer Katrib solicited help from DEA agents Matthew

Buchert and Terrence Bryant and advised Deputy James Thomas, the

K-9 handler, that his help might be needed as well. Around 9

p.m., the blue Acura SUV was observed leaving a residence and

arriving at a nearby Wal-Mart, where the driver of the SUV

conducted a brief transaction with the female driver of a Nissan

Altima. Following the transaction, Officer Katrib directed that

the law enforcement agents split up and follow both vehicles.

The Nissan was followed, stopped and searched by Officers

Thomas, Buchert and Katrib; the search of the vehicle and its

driver yielded cocaine powder and marijuana.

Agent Bryant followed the SUV from the Wal-Mart parking lot

and observed the driver of the SUV commit various traffic

violations, including failing to come to a complete stop at a

stop sign and failing to use a turn signal. Agent Bryant, who

was driving an unmarked car, enlisted the help of a Houston

police officer, Officer Le, who was on patrol in the area.

Officer Le conducted a traffic stop of the Acura SUV, which was

being driven by Collins. Agent Bryant observed Officer Le

approach the SUV to obtain standard information such as a

driver’s license and insurance information and then return to

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his cruiser. After Officer Le returned to the SUV, Agent Bryant

saw Collins exit the vehicle and sit down on the curb “very

calm[ly].” J.A. 133. Agent Bryant testified that, at that

point, “Officer Le told me that the defendant had given consent

to search the vehicle.” J.A. 132. Agent Bryant, however, was

not privy to any discussion between Officer Le and Collins.

Officer Le did not testify at the suppression hearing.

Agent Bryant notified Officers Katrib and Thomas that the

SUV had been stopped, and he began searching the vehicle while

the K-9 unit was in route. When Officer Katrib arrived, he was

advised by officers on the scene that Collins “had granted

verbal consent for the search of the vehicle.” J.A. 157.

Agent Bryant’s initial search of the SUV did not uncover

any contraband. When the K-9 unit arrived 10 to 15 minutes

later, however, the drug dog alerted to the front console, where

officers located a hidden compartment containing a loaded .45-

caliber semi-automatic handgun and approximately 85 grams of

cocaine. Approximately $35,000 was recovered from the Acura SUV

and Collins’ person.

There is no indication that Collins was handcuffed during

the search. According to Officer Katrib, Collins appeared to be

relaxed and confident and even wore a “smirk” during the search.

At no time did Officer Katrib hear or see anything indicating

that Collins wanted to withdraw his consent to the search.

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The district court concluded that the stop of the Acura

SUV being driven by Collins was lawful and that Collins then

consented to the search of the vehicle. Thus, the court denied

the motion to suppress. On appeal, Collins contends that the

government failed to present any evidence that he voluntarily

consented to the vehicle search.

The Fourth Amendment generally prohibits warrantless

searches, but the warrant requirement does not apply where valid

consent to the search is given. See Schneckloth v. Bustamonte,

412 U.S. 218, 219 (1973). “[T]he Government bears the burden of

establishing, by a preponderance of the evidence, that it

obtained valid consent to search.” United States v. Buckner,

473 F.3d 551, 554 (4th Cir. 2007). Of course, consent is valid

only when it is freely and voluntarily given. See Trulock v.

Freeh, 275 F.3d 391, 401 (4th Cir. 2001). “[V]oluntariness of

consent to search is a factual question, and as a reviewing

court, we must affirm the determination of the district court

unless its finding is clearly erroneous.” United States v.

Lattimore, 87 F.3d 647, 650 (4th Cir. 1996) (en banc).

The government relied on hearsay testimony from Agent

Bryant and Officer Katrib to establish that Collins consented to

the search. It is well established, however, that hearsay

testimony is admissible at a suppression hearing. See United

States v. Matlock, 415 U.S. 164, 172-75 (1974) (reversing

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district court’s refusal to admit hearsay at suppression

hearing); United States v, Raddatz, 447 U.S. 667, 679 (1980)

(“At a suppression hearing, the court may rely on hearsay and

other evidence, even though that evidence would not be

admissible at trial.”). When the evidence presented at the

suppression hearing is viewed in the light most favorable to the

government, the totality of the circumstances support the

court’s conclusion that the government obtained valid consent to

search the SUV. Nothing in the record suggests coercive

circumstances when Collins consented to the search. In fact,

the opposite is true. Collins appeared to be calm and even

confident to the point that he was smirking at officers who were

having difficulty locating the evidence hidden in the secret

compartment. No weapons were drawn and Collins was not cuffed

during the search. We perceive no clear error in the district

court’s factual determination that Collins consented to the

search of the vehicle. Accordingly, we affirm the district

court’s denial of Collins’ motion to suppress.

d.

Wilson challenges the sufficiency of the evidence to

support his conviction for conspiracy to distribute five

kilograms or more of cocaine and 28 grams or more of crack. The

verdict of the jury “must be sustained if there is substantial

evidence, taking the view most favorable to the Government, to

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support it.” United States v. Burgos, 94 F.3d 849, 862 (4th

Cir. 1996) (en banc) (emphasis and internal quotation marks

omitted). “Substantial evidence is evidence that a reasonable

finder of fact could accept as adequate and sufficient to

support a conclusion of a defendant’s guilt beyond a reasonable

doubt.” United States v. Green, 599 F.3d 360, 367 (4th Cir.

2010) (internal quotation marks omitted).

In order to prove conspiracy to distribute cocaine and

cocaine base, the government must show: “(1) an agreement to

distribute . . . cocaine [and cocaine base] . . . existed

between two or more persons; (2) the defendant knew of the

conspiracy; and (3) the defendant knowingly and voluntarily

became a part of th[e] conspiracy.” United States v. Yearwood,

518 F.3d 220, 225-26 (4th Cir. 2008) (internal quotation marks

omitted). “Proof of a conspiracy may of course be by

circumstantial evidence; it need not and normally will not be by

direct evidence.” United States v. Mabry, 953 F.2d 127, 130

(4th Cir. 1991) (internal quotation marks omitted). “Once it

has been shown that a conspiracy exists, the evidence need only

establish a slight connection between the defendant and the

conspiracy to support conviction.” United States v. Brooks, 957

F.2d 1138, 1147 (4th Cir. 1992).

Viewed in the light most favorable to the government, the

evidence supports the conclusion that Wilson and Collins were

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partners in the drug distribution trade together. Co-

conspirator Buckner described Collins and Wilson as being like

“business partners” and “brothers.” J.A. 456. From 2009 to

2011, Collins supplied Buckner with cocaine that Buckner then

redistributed. Collins and Wilson’s enterprise moved a high

volume of drugs; Buckner estimated that Collins was moving two

kilos of cocaine every two days. While Buckner generally dealt

with Collins, he purchased a small amount of cocaine—a half

ounce—from Wilson on at least one occasion. And in April 2011,

Buckner arranged to purchase four ounces of cocaine from Collins

for an acquaintance from Virginia. Shortly before the

transaction was to occur, however, Collins told Buckner that he

could not meet with Buckner. Instead, Collins sent Wilson in

his place to meet with Buckner. Wilson arrived at the Taco

Cabana driving a blue Acura SUV with the cocaine; Buckner

entered the SUV and paid for the cocaine. Moreover, Buckner’s

account of this transaction was corroborated by S.D. Thornton

who bought drugs from Buckner on multiple occasions. Officer

Brian Gavin, who took surveillance photographs, further

corroborated the general details of the Taco Cabana transaction.

Wilson’s Acura SUV was fitted with an after-market secret

compartment behind his console, a feature that was popular among

drug traffickers. Buckner testified that Collins owned a red

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truck that also had a hidden compartment in which he stored

drugs and a handgun.

Wilson contends that, apart from the Taco Cabana sale,

there is no indication that Wilson engaged in repeated or

routine drug deals or otherwise did anything to join the

conspiracy. The evidence connecting Wilson to the conspiracy,

however, is strong enough to support the jury’s guilty verdict.

There was testimony that Wilson and Collins were like brothers

in their drug distribution business. More importantly, Collins

sent Wilson in his stead to complete the Taco Cabana

transaction. These facts alone are sufficient to connect Wilson

to the conspiracy.*

e.

Next, Appellants seek reversal on the basis that the

district court refused to afford the jury a written copy of the

* Wilson also argues that in the event we agree that the

evidence was insufficient to convict him, we should then conclude that the district court erred in calculating drug quantity under the guidelines. Specifically, Wilson argues that the district court offered no explanation to support the determination that he be held accountable for over 150 kilograms of cocaine. As explained above, however, the evidence was sufficient to support his conviction. The presentence investigation report (PSR) calculated the amounts based on the same evidence supporting Wilson’s conviction and found that Wilson and Collins, who “were equal partners in the distribution of illicit drugs,” were “responsible for [446 kilograms] of powder cocaine.” J.A. 811. The district court specifically found that the drug quantities were “properly calculated by the probation officer.” J.A. 781.

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jury instructions. The decision to provide a set of written

instructions to the jury is clearly one that is within the sound

discretion of the trial court and will not be reversed absent an

abuse of that discretion. See United States v. Jones, 353 F.3d

816, 818 & n.2 (9th Cir. 2003) (collecting cases). Appellants

fail to identify any reason requiring the district court to

supply a written copy of the instructions to the jury. The

trial was less than two days long and the jury was presented

with a very limited number of witnesses to consider and issues

to decide. Presuming, as we must, “that a properly instructed

jury has acted in a manner consistent with the instructions,”

United States v. Alerre, 430 F.3d 681, 692 (4th Cir. 2005),

there was no reason in this case to believe the jury could not

follow the court’s oral instructions under the circumstances.

Appellants respond that the jury expressed confusion and

asked to be reinstructed on the issue of drug weight and the

concept of multiple conspiracies. After deliberation began, the

jury sent the following note to the court: “The quantity of

cocaine and cocaine base – do they relate to Virginia only or

anywhere?” J.A. 648. The note was silent with respect to the

issue of multiple conspiracies – it related to calculating drug

quantity. And, significantly, the issue raised in the jury note

was not addressed in the court’s instructions. Thus, giving

those instructions to the jury in written form would not have

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shed light on the jury’s question. We conclude that the

district court was well within its discretion in declining to

give the jury a written copy of the jury instructions.

f.

Next, Wilson contends that the district court erred in

rejecting his proposed jury instructions regarding the drug

quantity attributable to him. Reviewing the refusal to give a

jury instruction for abuse of discretion, we will reverse only

when the requested instruction “(1) was correct; (2) was not

substantially covered by the court’s charge to the jury; and (3)

dealt with some point in the trial so important, that failure to

give the requested instruction seriously impaired the

defendant’s ability to conduct his defense.” United States v.

Lighty, 616 F.3d 321, 366 (4th Cir. 2010) (internal quotation

marks omitted). “[This Court] review[s] a jury instruction to

determine whether, taken as a whole, the instruction fairly

states the controlling law.” United States v. Hurwitz, 459 F.3d

463, 474 (4th Cir. 2006) (internal quotation marks omitted).

Wilson asked the court to instruct the jury (1) that it

must “make an individualized determination of the quantity of

drugs attributable to each defendant,” J.A. 301, and (2) that

the jury must “bear in mind that guilt is individual” and that

the jury’s “verdict as to each defendant must be determined

separately with respect to him.” J.A. 287. The district court

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instead adopted the government’s proposed language and

instructed the jury that “the defendants are accountable for the

quantity of controlled substances that they personally

distributed or that they could reasonably foresee that others

would distribute.” J.A. 638.

The district court’s instruction correctly stated the law

as to the drug quantity attributable to an individual defendant

in a drug conspiracy case. In United States v. Collins, 415

F.3d 304, 312 (4th Cir. 2005), we explained that

the sentencing provisions applicable to conspiracies involving multiple narcotics should be individualized to reflect a particular coconspirator’s relative culpability in the conspiracy . . . [and a district court must] assess the quantity of narcotics attributable to each coconspirator by relying on the principles set forth in [Pinkerton v. United States, 328 U.S. 640 (1946)].

Id. (internal quotation marks omitted). Under Pinkerton, a

defendant is liable not only for the amount of drugs that he was

personally involved in distributing, but also for those amounts

distributed by other members of the conspiracy whose actions

were both “reasonably foreseeable and in furtherance of the

conspiracy.” United States v. Blackman, 746 F.3d 137, 141 (4th

Cir. 2014). As required by Collins, the district court properly

instructed the jury on the Pinkerton principles. See Collins,

415 F.3d at 314.

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Nonetheless, Wilson argues that the district court’s

instructions constituted reversible error because, when coupled

with the court’s instruction that “a person who knowingly,

voluntarily, and intentionally joins an existing conspiracy is

responsible for all of the conduct of the coconspirators from

the beginning of the conspiracy,” J.A. 637-38, the court’s

instruction misled the jury into grouping Appellants together

when determining the drug quantity attributable to Wilson alone.

We disagree. To the extent the jury instructions permitted any

confusion as to the individualized assessment of the quantity of

drugs connected to each defendant, the district court’s separate

verdict forms reiterated the jury’s duty to separately determine

whether each defendant was guilty of conspiracy. The special

verdict forms required the jury to determine separately whether

each individual defendant was guilty of conspiring to distribute

cocaine and cocaine base and, if so, the amount attributable to

each individual defendant. Accordingly, Wilson’s proposed jury

instructions were substantially covered by the district court’s

instructions.

g.

Finally, Appellant Wilson argues that the district court

abused its discretion by admitting into evidence a recorded jail

phone call between himself and Collins offered by the government

to show that Collins and Wilson were trying to “get on the same

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page with respect to the Taco Cabana [drug] deal,” J.A. 540, so

as to “further[] . . . the conspiracy” by “concealing” it,” J.A.

539. The call, as transcribed, proceeded as follows:

Collins: “Another thing that might gotta come, you know, we gotta see how we gonna put this in order is about that, . . . whatever they talking about happened at the Taco Cabana. We gotta . . . to the lawyers rather, we gotta confirm it or not confirm it, you know, and [the lawyers] got to work [their] way around that some type of way and I don’t wanna just say . . . then, you know, there’s no way they can reform that . . . You know what I’m saying. . . .

Wilson: Man . . . [unintelligible]

Collins: . . . they’re not gonna go in there and say “yeah”, it happened, you know what I’m saying, but I ain[’]t . . .

Wilson: [S]he’s working on that shit right now, but ain[’]t no need to be reformed dog, the shit is bullshit.

Collins: It can be bullshit bro, but it’s to the point about how much the FBI got about that shit and how . . . you know what I’m saying. And if we just straight up say, you know what I’m saying I can’t really get at you but I wanna get a confirmation with you if we on the same page before I take it there.

J.A. 716 (some internal alterations in original).

Wilson objects to the introduction of the statements by his

co-defendant Collins on two grounds. First, Wilson argues that

the admission of the phone call violated his rights under the

Confrontation Clause. We disagree. The Confrontation Clause

reaches only “testimonial” statements. See United States v.

Jones, 716 F.3d 851, 855 (4th Cir. 2013) (internal quotation

marks omitted). Statements are testimonial when “a reasonable

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person in the declarant’s position would have expected his

statements to be used at trial – that is, [when] the declarant

would have expected or intended to bear witness against another

in a later proceeding.” Id. (internal quotation marks omitted).

Recorded phone calls from prison clearly are not “testimonial”

per se. See id. (holding that statements made in “casual

conversations” on prison telephone calls were not testimonial

and their admission did not violate Confrontation Clause). We

agree with the government that nothing indicates Collins

expected or intended to “bear witness” against Wilson in the

phone call, as Collins’ statements implicated himself as much as

Wilson to the extent that they implicated anyone at all.

Second, Wilson argues that Collins’ statements constituted

inadmissible hearsay that was not subject to the co-conspirator

exception to the hearsay rule under Rule 801(d)(2)(E) of the

Federal Rules of Evidence. Under this rule, “a statement of the

defendant’s co-conspirator is admissible against the defendant

if it was made during the course of and in furtherance of the

conspiracy.” United States v. Shores, 33 F.3d 438, 442 (4th

Cir. 1994) (internal quotation marks omitted). A co-

conspirator’s statements come in “if the court finds (i) that

the defendant and the declarant were involved in a conspiracy

with each other at the time the statement was made; and (ii)

that the statement was made in furtherance of that conspiracy.”

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Id. (footnote omitted); see Krulewitch v. United States, 336

U.S. 440, 442 (1949) (holding that an out-of-court statement of

one conspirator may be admitted against his fellow conspirator

only if the statements were “made pursuant to and in furtherance

of objectives of the conspiracy charged”).

Wilson argues that the drug conspiracy was over when the

statement was made as both Appellants were incarcerated. The

government argues that although the statement was made as part

of a separate conspiracy to obstruct justice at the trial, it

was nonetheless related to the charged conspiracy. Even if

these statements were not made in furtherance of the conspiracy

as required by Rule 801(d)(2)(E), we conclude that the admission

of the phone call was harmless. See United States v. Graham,

711 F.3d 445, 453 (4th Cir. 2013) (“The incorrect admission of a

statement under the coconspirator statement exclusion from the

definition of hearsay is subject to harmless error review.”).

“Erroneously admitted evidence is harmless if a reviewing court

is able to say, with fair assurance, after pondering all that

happened without stripping the erroneous action from the whole,

that the judgment was not substantially swayed by the error.”

United States v. Johnson, 587 F.3d 625, 637 (4th Cir. 2009)

(internal quotation marks omitted). As Wilson points out, he

uttered only a single sentence during the phone call which could

be taken to suggest that Wilson disagreed that he and Collins

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needed to get “on the same page” and “reform” the facts. J.A.

716. In fact, to the extent Wilson’s statement was even

intelligible, a juror could reasonably conclude that Wilson was

denying involvement in the Taco Cabana incident which he

referred to as “bull***t” and that Wilson felt “no need to . . .

reform[]” the facts before trial. J.A. 716. We conclude that

the jury’s verdict in this case could not reasonably have been

swayed by the admission of the largely incomprehensible phone

conversation between Wilson and Collins.

III.

For the foregoing reasons, the judgment below is hereby

AFFIRMED.